Trial Lawyers at the Scene of the Crime

Murder crime sceneIt might be the back alley of a dive bar where a man was bludgeoned to death, the potato chip aisle at a local grocery store where the plaintiff claims he slipped and fell, or a tiled and antiseptic operating room where your client’s husband died during routine surgery.  In each instance, regardless of whether the case is civil or criminal, the location is the same: it’s the “scene of the crime.” 

In your last case, how many times did you visit the “scene of the crime” before trial began?  Once?  Twice?  Half a dozen times?

Unfortunately, if you’re like many lawyers, the answer is probably “none.”  Oh sure, you looked at photos, examined a map of the area, and listened intently as your witnesses described the scene, but when it comes right down to it, you never actually left the comfort of your office to go visit the scene.

For as long as I’ve been a lawyer, I’ve always heard how important it was to visit the scene.  Law school buddies said I should visit the scene, but I didn’t listen.  Trial partners told me that I should visit the scene, but I didn’t listen.  Judges and senior attorneys said, “Go!”, but I didn’t listen. 

To be candid, I rarely went to the scene because I always came up with an excuse for why I didn’t need to go:

“Hey, I’ve got a full caseload, with dozens of pending cases.  99% of all cases never go to trial, so why waste my time visiting scenes on cases that I know will be resolved?”

“You don’t really expect me to go to the scene of the murder, do you?  That place is dangerous!  Heck, a guy got killed there!  (Um, I mean a guy was ‘allegedly’ killed there…)”

“I’ve seen the photos and a map of the area, so I’ve got a pretty good idea of what the place looks like.”

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted.  This man’s worldly wisdom was more valuable than anything I’d ever learned in law school.  He wasn’t a lawyer, but lawyers listened to him.  In fact, his influence extended far beyond the courthouse walls.  I have it on good authority that countless legislators, law school professors, judges (even a few Supreme Court Justices) still listen to everything he says, and will go out of their way to see him if he visits their town. 

So who was this sage?  Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album.  Here’s what he told me: 

“Don’t try to describe the ocean if you’ve never seen it —
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations.  And if Jimmy Buffett’s recommendation isn’t enough to get you out of the office, here are three more reasons why you’ll want to visit the scene of the crime:

1. You’ll present better opening statements.  If I asked you to tell me what one of the courtrooms in your courthouse looks like, you could probably describe it in great detail, couldn’t you?  That’s because, in your mind’s eye, you can “see” where the jury box is located, the height of the judge’s bench, and the distance between the witness box and the attorney’s tables.  When I ask you to describe the courtroom, you simply access your visual memory and tell me what you “see.”

In much the same way, going to the scene helps you “see” how the events unfolded, which lets you bring the action to life during your opening statement.  Instead of cobbling together random details from witness statements and various reports, you simply transfer the images from your mind’s eye into your jurors’ minds.

2. You’ll extract more detail during direct examination.  Possibly the greatest benefit of visiting the scene is that you’ll start pulling far more detail out of your witnesses during direct examination.  For example, compare these two direct examinations from Driving Under the Influence (DUI) cases.  The first is by a prosecutor who only read the police reports and talked with his witnesses:  

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Once you turned on your lights and sirens, did he stop his car?

A: No, he didn’t stop for about 250 yards, until he reached Miller’s Pub.

Q: Were there any other safe places to stop his car?

A: There were several, but he didn’t stop in any of them.

That’s not too bad, right?  You know that the driver didn’t stop his car, even though the police officer’s lights were flashing and his sirens were wailing.  You also know that he passed by several other safe places to stop his car.  At this point, you might even be thinking that the reason why he didn’t stop the car was alcohol-related.  But look at how much better the direct examination becomes if the prosecutor actually has first hand knowledge of how the scene looks:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Just past the Dunkin’ Donuts is a Waffle House, right?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Once you turned on your lights and sirens, did he stop in the Waffle House parking lot?

A: No.

Q: What about the Applebee’s after that?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Applebee’s parking lot?

A: No, he didn’t.

Q: How about Bennigan’s?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bennigan’s parking lot?

A: No, he didn’t stop there, either.

Q: Tell us about McDonald’s.  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he pull over into the McDonald’s parking lot?

A: No, he kept driving.

Q: Bob’s Big Boy?  Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bob’s Big Boy parking lot?

A: No, he drove right past it.

Q: The Hess gas station, is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Hess gas station?

A: No, he didn’t.

Q: Officer, where did the defendant finally stop his car?

A: About 250 yards after I first turned on my lights and sirens, at Miller’s Pub.

By visiting the scene, you can ask more intelligent questions and elicit more details from your witnesses.  This lets you fill in all of the “holes” in their testimony and present a complete picture for the jurors.

3. Your cross-examination will be more lethal.  Your witnesses and investigators don’t know as much about the case as you do, so they can easily overlook cross-examination insights which would seem obvious to you.  When you visit the scene (rather than relying on second hand information) you will uncover clues that others wouldn’t even recognize as being important.  Those clues may be the winning edge you need to poke holes in opposing witness’s testimony.

  • “You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isn’t that right?”
  • “That day was a clear day, wasn’t it?”
  • “Not a cloud in the sky, right?”
  • “The sun was shining brightly from the west.”
  • “Earlier, you said that you had a clear view of the crash, because the sun was directly behind you as you looked out the window, right?”
  • “The Morgan St. glass shop is directly across the street from the Starbucks, isn’t it?”
  • “The glass shop has a 20′ x 10′ mirror in the front of the store, doesn’t it?”
  • “And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesn’t it?”
  • “In fact, the light reflects directly into the Starbucks, blinding the barristas.”
  • “They close the front blinds as soon as the light hits the espresso machines, so that no one in the store gets blinded, don’t they?”

Visiting the scene of the crime can make the difference between whether the jury “sees” what happened to your client or not.  Your pre-trial preparation won’t be complete until you’ve visited the scene of the crime, so block off some time in your calendar and go.  You’ll be glad you did, and so will your client!

Don’t Make This Rookie Trial Lawyer Mistake!

Baby lawyerIt was Bill’s first trial.  Like many young lawyers, he was concerned about getting his exhibits introduced into evidence.  “I took a trial advocacy class in law school,” he said, “But I don’t want to make any mistakes that will stop me from introducing my exhibits.  What should I do?”

To help him get ready for trial, Bill’s trial partner encouraged him to look through a book on evidentiary predicates, write out his predicate questions word-for-word, and invest a few hours anticipating any objections that might arise.  Bill followed his advice, but he still felt a little nervous.

When it came time for trial, however, Bill was ready.  Each of his carefully worded questions were written in block print on a yellow legal pad that he held as if it were a winning lottery ticket.  He wiped away a light sheen of perspiration from his forehead, and started to ask questions.  As he questioned the witness, his eyes never left the legal pad, for fear of omitting a single word from his questions.  He visibly flinched each time his opponent moved her chair, fearing that she was rising to object.  Finally, however, he read the final question from his legal pad.  “At this time, we would ask that Exhibit A for Identification be introduced into evidence as Exhibit #1.”

The judge turned to his opponent and asked, “Any objections, counselor?”

His opponent had no objections, so the judge ruled, “Exhibit A for Identification is hereby moved into evidence as Exhibit #1.”

Bill exhaled a sigh of relief.  “No more questions, your honor,” he said, and sat down at his table.  He was visibly relieved, but you could also see the hint of a proud smile starting to bloom on his face.  He’d done it!  Despite all of his concerns, he’d actually gotten his first piece of evidence admitted.  There was only one problem…

He never showed the exhibit to the jury!

He had focused, almost obsessively, on getting his evidence admitted.  As a result, he’d lost track of the big picture.  Although he’d managed to ask the proper predicate questions, anticipate objections, and get his exhibit introduced into evidence, Bill had forgotten why he was asking those predicate questions.  We don’t ask questions because we want the jurors to hear the evidentiary foundations.  We don’t ask questions because we want to avoid objections.  And we don’t ask questions to get our evidence admitted into evidence.

The reason we ask predicate questions is so the jury can see our exhibits.

The next time you’re in trial, remember why you’re asking your questions.  Focus on the real reason why you’re asking those predicate questions.  Do you want the jurors to see an exhibit?  Do you want them to believe that a document is authentic?  Do you want them to believe your witness is qualified to render an expert opinion?  Keep in mind what you’re trying to accomplish, and you won’t lose sight of the forest for the trees.

What’s your emergency plan for jury trials?

In every football game, coaches make decisions about whether to take a timeout, to accept a penalty, or to go for it on 4th down.  These decisions must often be made in a split-second, and can affect the entire outcome of the game.  Anyone who’s watched football has probably heard the old mantra, "Every second you leave on the clock unnecessarily may be the one your opponent uses to beat you."

That’s why football coaches spend so much time studying clock management techniques.  They think their way through every timing possible scenario before they take the field, because they know that they’ll eventually run into a situation where they need to make a split second decision.

How do they do it?  They script out their decisions in the calm of their office, before they run into the problem on the field. They know that their minds don’t work their best when dealing with distractions, time pressure, and screaming fans, so they figure out what the best possible response should be beforehand, and then implement it on the field.  

These coaches prepare charts to tell them when to kick and when to go for the 2 point conversion. They have charts to help them decide whether or not to stop the game clock.  They have charts to tell them whether or not to accept penalties.

Every conceivable problem gets mapped out before they take the field, so that they can make the best decision when it counts.

But what about you and your trial practice preparation?  Do you have a plan in place for dealing with emergencies?

Think about all of the things that could possibly go wrong in your next trial. Here are some examples:

  • Your star witness is late…
  • Your start witness doesn’t show up…
  • Your exhibit is excluded…
  • The judge reverses his pre-trial ruling and admits your opponent’s exhibit into evidence…
  • The judge reverses his pre-trial ruling and doesn’t admit your exhibit into evidence…
  • Your objection is overruled…
  • Your opponent’s objection is sustained…

Do you have responses prepared for these scenarios?  If not, you need to invest some time burning the midnight oil and crafting a solution to each of those potential problems.

You’re not going to win jury trials because you’re the most attractive lawyer in the courthouse (even though you are, gorgeous!) or because you’re the smartest person in the courtroom (even though you are, Einstein!) Nope, you’ll win jury trials because you’re the most prepared lawyer in the courtroom, and you’ve thought of responses to every possible problem.

Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy.   Removing the appendix is easy.  Heck, I could probably teach you how to do it in a 30 minute seminar.  But surgeons don’t get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you’re removing it.

That’s why you get paid the big bucks.  Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that’s why you get paid the big bucks.  Script out your responses to all of the different scenarios before trial begins, and you’ll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.